that adequately inculpates defendants as a prerequisite to discovery — a main purpose of which is go give plaintiffs access to information solely in defendants’ possession, posing a classic catch-22 — important groups of meritorious cases may be eliminated from the system.14 Ready answers, even ways of thinking cogently about some of the tradeoffs, have been lacking. A reader of these two Supreme Court opinions might be excused from believing that the majority and dissent in both cases engaged in wishful thinking in downplaying the competing half of the dilemma.15 Some commentators have proposed glosses on or substitutes for the Court’s plausibility test,16 but it is hard to see how recasting the test’s language can avoid or even diminish the real-world conflict. Additionally, much of the discussion seems aimed at how plaintiffs’ allegations must be worded, a focus that is appropriate for providing notice to defendants but one that seems inapt regarding the substantive standard because the impossibility of knowing the unknown cannot be surmounted by artful drafting.17 The test for summary judgment, although less controversial at the moment, is itself quite murky.18 Rule 56 of the Federal Rules of Civil Procedure asks whether there is a “genuine dispute,”19 which Anderson held to be the same as the standard under Rule 50 for judgment as a matter of law.20 But what does that test require? The question-begging answer contained in the rule itself is whether “a reasonable jury would . . . have a legally sufficient evidentiary basis to find for the party on that issue.”21 Setting aside the considerable ambiguity created by the phrase “reasonable jury,”22 this test demands that a case should be given to the factfinder (or that the factfinder’s decision should be sustained) if and only if there is a legally sufficient basis for it to reach the judgment in question.23 In all, it seems that dispositive motions in U.S. civil courts must be decided using rather ambiguous, open-ended criteria,24 where little guidance has been offered regarding what either test’s actual content is — or what that content should be. These familiar formal rules governing civil litigation in U.S. courts may not be the most significant overall. In many areas of federal law, from antitrust to environmental regulation to OSHA, and with countless counterparts in state and local government, critical decisions are routinely made at early and interim stages within administrative agencies. For example, whether the Department of Justice or Federal Trade Commission, when reviewing a merger, chooses to make a second request for information and ultimately decides to file a challenge is often decisive, for the parties may well give up the fight before even a preliminary decision by a court.25 In addition, interim decisions by police and prosecutors whether to pursue or drop investigations are momentous: continuation can ruin lives and destroy entities’ value even when cases are meritless, and termination of valid cases undermines deterrence. It is also notable that, with regard to staging, administrative and court procedures vary greatly within and across jurisdictions. Different agencies adopt different approaches; civil litigation differs from criminal litigation, both of which differ from similar activities within agencies and investigative entities; and U.S. states often differ from each other and from the federal government. Common law jurisdictions are hardly homogeneous (for example, the United Kingdom has replaced the grand jury,26 and the United States employs a distinctive discovery process). To a varying extent, Continental legal systems27 in civil cases follow a more sequential process for developing evidence, although they tend to lack formal interim termination points like motions to dismiss and for summary judgment.28 This great diversity in approaches provides further impetus to the present investigation.29 In sum, multistage legal procedures are ubiquitous, vary tremendously across legal systems, and constitute one of the most important institutional features of adjudication. In this light, it is surprising that scholars have almost completely ignored the question of how preliminary or interim legal decisions ought to be made.30 Nor has there been much attention to the optimal structure of multistage adjudication: when to have distinct stages, how many, what issues and evidence to consider at each, and in what order. This gap exists despite massive legal writing on procedure,31 including recent decades’ work in law and economics.32 This Article analyzes these questions, with an emphasis on the first: how decisions are optimally made at each stage, taking the structure of the rest of the legal system as given. In some respects, the results are quite general and have broad application, for they pertain to any sort of system with any number of stages. Hence, the implications are relevant not only to motions to dismiss and summary judgment (as well as the burden of proof at trial) in U.S. civil litigation — which will be highlighted in Part IV — but also to indictments in criminal settings, all manner of agency proceedings, interim decisionmaking by police or other investigative bodies, some features of Continental legal systems, and alternative dispute resolution. In other respects, this investigation has important limitations. Preliminary assessments of complex regimes are inevitably incomplete, the analysis focuses on certain important but specific legal settings, and optimal system design and operation in any context depend on many empirical matters that are heretofore unexplored and would be difficult to assess. The Article’s method is to ask what procedural rules best advance social welfare, wherein the two central considerations are the legal system’s effects on behavior — deterrence of harmful conduct and the chilling of desirable activity — and total system costs.33 Until Part IV, the analysis proceeds in pure form, setting aside its applicability under prevailing rules and institutional constraints, which obviously vary greatly across legal systems and also could potentially be reformed. Nevertheless, the approach seems, prima facie, to have relevance in many existing settings. Born Freedom
Posted on: Sat, 24 Jan 2015 20:57:49 +0000
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